LSTD 510 APUS Week 5 Same Sex Marriage Obergefell vs Hodges Case Discussion

LSTD 510

American Public University System


Question Description

Need help with my Political Science question - I’m studying for my class.

This week you read the very controversial Obergefell v Hodges. We are going to be doing our forum discussion a little differently.

1. To spark an interesting and balanced discussion on Obergefell v Hodges, please post an initial post that challenges the state laws in question. Argue that same-sex marriages should be recognized and that the states which prohibit same-sex marriage should be required to perform such marriages. (500 words, 2 sources)

2. After you have posted your initial post, we can have a discussion on the following question. From a legal standpoint, do you agree or disagree with the ruling? Why or why not? Remember to support your answers and give attribution to your sources. (250 words, one source)

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 View All Amendments 14TH AMENDMENT Citizenship Rights, Equal Protection, Apportionment, Civil War Debt Passed by Congress June 13, 1866. Rati ed July 9, 1868. The 14th Amendment changed a portion of Article I, Section 2. A portion of the 14th Amendment was changed by the 26th Amendment Section 1 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2 Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial o cers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3 No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any o ce, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an o cer of the United States, or as a member of any State legislature, or as an executive or judicial o cer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section 4 The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5 The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Read Interpretations of Citizenship Clause Read Interpretations of Due Process Clause Read Interpretations of Equal Protection Clause Read Interpretations of Enforcement Clause Read Interpretations of Privileges or Immunities Clause Learn More Learn More Learn More Learn More Learn More MORE ABOUT 14TH AMENDMENT The Drafting Table Explore key historical documents that inspired the Framers of the Constitution and each amendment during the drafting process, the early drafts and major proposals behind each provision, and discover how the drafters deliberated, agreed and disagreed, on the path to compromise and the nal text. View Text In the Classroom Teach the Constitution in your classroom with nonpartisan resources including videos, lesson plans, podcasts, and more. Check out our classroom resources organized by each article or amendment, and by key constitutional questions. View Classroom Materials Media Library: 14th Amendment More Media Podcast The Constitution and the Coronavirus Town Hall Video RBG in Song: An Evening with U.S. Supreme Court Justice Ruth Bader Ginsburg featuring a Special Performance Mar 19 Dec 17 Blog Post Educational Video Blockbuster Cases on the CFPB and Abortion at SCOTUS McDonald v. Chicago Before the Supreme Court suspended oral arguments due to concerns about the spread of the coronavirus—it heard two of the… Mar 21 A deep dive into McDonald v. Chicago, a 2010 Supreme Court case that ruled that the Second Amendment's right to keep and bear arms… Sep 6 MORE FROM THE NATIONAL CONSTITUTION CENTER Carry the Constitution in Your Pocket! Download the App The Interactive Constitution is available as a free app on your mobile device. Learn More Visit the National Constitution Center Find out about upcoming programs, exhibits, and educational initiatives on the National Constitution Center’s website. Support the Interactive Constitution The National Constitution is a private nonpro t. Please support our educational mission of increasing awareness and understanding of the U.S. Constitution. Donate Stay Informed Interactive Constitution Get the National Constitution Center’s weekly roundup of constitutional news and debate. Home About The Constitution National Constitution Center Enter Email Sign Up The Drafting Table Media Library In the Classroom Terms & Conditions Creative Commons Contact Us Independence Mall 525 Arch Street Philadelphia, PA 19106 © Copyright 2020 National Constitution Center A NEW BIRTH OF FREEDOM?: OBERGEFELL V. HODGES Kenji Yoshino The decision in Obergefell v. Hodges1 achieved canonical status even as Justice Kennedy read the result from the bench. A bare majority held that the Fourteenth Amendment required every state to perform and to recognize marriages between individuals of the same sex.2 The majority opinion ended with these ringing words about the plaintiffs: “Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”3 While Obergefell’s most immediate effect was to legalize same-sex marriage across the land, its long-term impact could extend far beyond this context. To see this point, consider how much more narrowly the opinion could have been written. It could have invoked the equal protection and due process guarantees without specifying a formal level of review, and then observed that none of the state justifications survived even a deferential form of scrutiny. The Court had adopted this strategy in prior gay rights cases.4 Instead, the Court issued a sweeping statement that could be compared to Loving v. Virginia,5 the 1967 case that invalidated bans on in–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––  Chief Justice Earl Warren Professor of Constitutional Law, New York University School of Law. I gratefully acknowledge receiving financial support from the Filomen D’Agostino and Max E. Greenberg Research Fund. I thank Perri Ravon and Annmarie Zell for their research assistance and Professor Reva Siegel for her comments. 1 135 S. Ct. 2584 (2015). 2 The case presented two questions: (1) “Does the Fourteenth Amendment require a state to license marriage between two people of the same sex?” and (2) “Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?” 135 S. Ct. 1039, 1040 (2015) (mem.). Counsel for the respondents acknowledged during oral arguments that an affirmative answer to the first question would indicate an affirmative answer to the second. Transcript of Oral Argument at 44, Obergefell, 135 S. Ct. 2584 (No. 14-556) (discussing the second question presented). The Court’s opinion focused almost all of its attention on justifying its affirmative answer to the first question, and it ended with three paragraphs giving an affirmative answer to the second. See Obergefell, 135 S. Ct. at 2607–08. 3 Obergefell, 135 S. Ct. at 2608. 4 See, e.g., United States v. Windsor, 133 S. Ct. 2675, 2682–83 (2013) (invalidating federal definition of marriage as a union of one man and one woman under Fifth Amendment’s Due Process Clause without specifying a level of review); Lawrence v. Texas, 539 U.S. 558, 578–79 (2003) (invalidating state ban on same-sex sodomy under Fourteenth Amendment’s Due Process Clause without specifying a level of review); Romer v. Evans, 517 U.S. 620, 623 (1996) (invalidating state constitutional amendment barring protected status for gays, lesbians, or bisexuals under Fourteenth Amendment’s Equal Protection Clause without specifying a level of review). 5 388 U.S. 1 (1967). 147 148 HARVARD LAW REVIEW [Vol. 129:147 terracial marriage.6 Like Loving, Obergefell held that the marriage bans at issue not only violated the Due Process Clause but also violated the Equal Protection Clause.7 Yet Obergefell differed from Loving in two important respects. Where Loving emphasized equality over liberty,8 Obergefell made liberty the figure and equality the ground.9 Obergefell also placed a far stronger emphasis on the intertwined nature of liberty and equality.10 In doing so, Obergefell became something even more than a landmark civil rights decision. It became a game changer for substantive due process jurisprudence. This Comment will discuss how Obergefell opened new ground in that great debate. I. LIBERTY BOUND For well over a century, the Court has grappled with what unenumerated rights are protected under the due process guarantees of the Fifth and Fourteenth Amendments.11 The Court has rejected positions at both extremes. On the one hand, the position that the Constitution protects no unenumerated rights leads to embarrassments of various kinds. The Ninth Amendment provides textual assurance of the existence of unenumerated rights.12 And as a practical matter, the Court has recognized many unenumerated rights — including the right to direct the education and upbringing of one’s children,13 the right to procreate,14 the right to bodily integrity,15 the right to use contraception,16 the right to abortion,17 the right to sexual ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 6 7 8 See id. at 2. Compare id. at 12, with Obergefell, 135 S. Ct. at 2604–05. The Loving Court dedicated only two paragraphs to the Due Process Clause. See 388 U.S. at 12. 9 In an opinion that rested largely on the due process analysis, the Court spent only a few pages on the equal protection analysis. See Obergefell, 135 S. Ct. at 2602–05 (discussing Equal Protection Clause). 10 See id. at 2602–03 (“The Due Process Clause and the Equal Protection Clause are connected in a profound way . . . . This interrelation of the two principles furthers our understanding of what freedom is and must become.”). 11 See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 450–53 (1857) (invalidating Missouri Compromise under unenumerated liberty interest found in the Due Process Clause of the Fifth Amendment). 12 U.S. CONST. amend. IX (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”). 13 Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925); Meyer v. Nebraska, 262 U.S. 390, 400 (1923). 14 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942). 15 Rochin v. California, 342 U.S. 165, 172–73 (1952). 16 Eisenstadt v. Baird, 405 U.S. 438, 443 (1972); Griswold v. Connecticut, 381 U.S. 479, 485–86 (1965). 17 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 845–46 (1992); Roe v. Wade, 410 U.S. 113, 153 (1973). 2015] THE SUPREME COURT — COMMENTS 149 intimacy,18 and, yes, the right to marry.19 On the other hand, the Court has rejected the position that it has unfettered discretion to conjure unenumerated rights, noting that it “has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.”20 We are arguing over the difficult middle in this area of law. In shaping that middle ground, the Court has articulated two contrasting approaches. One is an open-ended common law approach widely associated with Justice Harlan’s dissent in Poe v. Ullman21 (a dissent given precedential weight by its adoption by a majority of the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey22). The other is a more closed-ended formulaic approach associated with the majority in Washington v. Glucksberg.23 Obergefell did not categorically resolve the ongoing conflict between the two models, but it heavily favored Poe. Decided in 1961, Poe concerned a criminal ban on the use of contraception.24 The Court dodged the issue of whether the law violated the Constitution by deeming the case nonjusticiable on standing and ripeness grounds.25 In dissent, Justice Harlan maintained that the Court should have reached the merits,26 and used the occasion to articulate standards for when a right could be deemed protected under the due process guarantees.27 He wrote: Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 18 19 20 Lawrence v. Texas, 539 U.S. 558, 578 (2003). Loving v. Virginia, 388 U.S. 1, 12 (1967). Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (citing Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 225–26 (1985)). 21 367 U.S. 497 (1961). 22 505 U.S. at 848–49. 23 521 U.S. 702, 720–22 (1997). 24 Poe, 367 U.S. at 498. 25 See id. at 503–09. 26 Id. at 522–24 (Harlan, J., dissenting). 27 Id. at 539–45. 150 HARVARD LAW REVIEW [Vol. 129:147 long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.28 With these words, Justice Harlan outlined a balancing methodology that weighed individual liberties against governmental interests in a reasoned manner. Such an approach always occurred against the backdrop of tradition, but was not shackled to the past, not least because tradition was itself “a living thing.”29 Based on this analysis, Justice Harlan deemed the law restricting contraception unconstitutional.30 In Washington v. Glucksberg, the Court took a starkly different approach. It observed that to be recognized as a due process liberty a right had to be “‘deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty.’”31 It also required a “‘careful description’ of the asserted fundamental liberty interest.”32 Finally, Glucksberg implied that the Court was more open to recognizing negative “freedom from” rights than positive “freedom to” rights — though, to be clear, it did not formally require the alleged right to fall on the “negative-right” side of the divide.33 Each of these three restrictions — the restriction based on tradition, the restriction based on specificity, and the restriction relating to negative rights — significantly departed from the Poe dissent’s methodology. That departure was self-conscious. In Glucksberg, Justice Souter’s concurrence observed that the Poe dissent’s methodology, which the Casey Court had embraced,34 should control in Glucksberg.35 Chief Justice Rehnquist, however, strongly disagreed in his majority opinion: In Justice Souter’s opinion, Justice Harlan’s Poe dissent supplies the “modern justification” for substantive-due-process review. But although Justice Harlan’s opinion has often been cited in due process cases, we have never abandoned our fundamental-rights-based analytical method. Just four Terms ago, six of the Justices now sitting joined the Court’s opinion in Reno v. Flores; Poe was not even cited. And in Cruzan v. Director, Mo. Dept. of Health, neither the Court’s nor the concurring opinions relied on Poe; rather, we concluded that the right to refuse unwanted medical ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 28 29 30 31 Id. at 542. Id. Id. at 553. Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (citations omitted) (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion); Palko v. Connecticut, 302 U.S. 319, 325 (1937)). 32 Id. (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)). 33 See id. at 719–20 (recognizing the Due Process Clause’s protection of both positive and negative liberty interests but describing its protection as one “against government interference with certain fundamental rights and liberty interests”). 34 See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 848–49 (1992) (quoting Poe, 367 U.S. at 543 (Harlan, J., dissenting)). 35 Glucksberg, 521 U.S. at 765–66 (Souter, J., concurring in the judgment). 2015] THE SUPREME COURT — COMMENTS 151 treatment was so rooted in our history, tradition, and practice as to require special protection under the Fourteenth Amendment. True, the Court relied on Justice Harlan’s dissent in Casey, but, as Flores demonstrates, we did not in so doing jettison our established approach. Indeed, to read such a radical move into the Court’s opinion in Casey would seem to fly in the face of that opinion’s emphasis on stare decisis.36 The Chief Justice’s vehemence suggests that he understood the significance of the choice between the two methodologies — and, more specifically, of the three restrictions articulated in Glucksberg. A. Tradition In Glucksberg, the Court found “that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’”37 Glucksberg did not coin these formulations. In the 1986 case of Bowers v. Hardwick,38 for instance, the Court invoked both formulations in ruling that the Due Process Clause did not protect the right to engage in same-sex sodomy: Striving to assure itself and the public that announcing rights not readily identifiable in the Constitution’s text involves much more than the imposition of the Justices’ own choice of values on the States and the Federal Government, the Court has sought to identify the nature of the rights qualifying for heightened judicial protection. In Palko v. Connecticut (1937), it was said that this category includes those fundamental liberties that are “implicit in the concept of ordered libert ...
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Final Answer


Obergefell Vs Hodges
Thesis statement: Obergefell Vs. Hodges is a landmark civil case in regards to same-sex
marriage. The case made same-sex marriage a fundamental right in the United States of
1. Question One -Initial posts that challenge the law on same-sex marriage
2. Question Two- Do you agree or disagree with the ruling in Obergefell v Hodges


Obergefell Vs Hodges
Institution Affiliation



Question One -Initial posts that challenge the law on same-sex marriage
Obergefell Vs. Hodges is a landmark civil case in regards to same-sex marriage. The
ruling of the case made same-sex marriage a fundamental right in America. The Supreme Court
of the natio in its ruling ensured that individuals of the same sex are in a position to get married,
both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment
confirmed this. All fifty states in the U.S are compelled to treat marriages of same-sex
individuals as equally as the opposite-sex marriage. The appellants of the case comprised of
couples of similar sex who sued their states, which included Ohio, Michigan, Kentucky as well
as Tennessee. They challenged the bans instituted on same-sex marriage by those states and
whether it was constitutional. They fu...

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